ABA Journal News

September 15, 2017

By Debra Cassens Weiss

 

Privacy Law

 

 

Shutterstock.com 

 

Updated: Apple’s new iPhone X promises convenience to users who can unlock it through facial recognition technology, but it’s also raising some privacy concerns among civil liberties advocates.

Police will need a warrant to search the contents of an iPhone, but it’s not clear whether they can force you to unlock the phone with Face ID to get the data, report the Washington Post and Motherboard.

 

The Supreme Court decision that established warrant protections for cellphone contents is Riley v. California. The 2014 decision held that police generally can’t search the contents of a cellphone seized during an arrest, unless they get a warrant. (Border agents may have more leeway, though a lawsuit contends a warrant is required in that situation too.)

 

Whether police can force you to open the phone through Face ID is unclear, the stories report. Courts have ruled that police need a warrant to force anyone to give up a passcode to an iPhone, and some courts have ruled that the same standard applies to Touch ID technology. Whether the standard applies to Face ID “is the next development in the already existing, open legal question,” says Lawfare blog managing editor Susan Hennessey, in an interview with the Washington Post.

 

The issue is whether using your face to unlock the phone is testimonial, triggering Fifth Amendment protections against self-incrimination, or a form of identification, report Motherboard, the Daily Beast and the Verge.

 

Brett Kaufman, a staff attorney for the American Civil Liberties Union, maintains that Face ID unlocking is testimonial. “Our argument has been in these cases that when you decrypt data [by opening your phone] you’re transforming the information and you’re doing it with a translation that’s your own,” Kaufman tells Motherboard. “We think that raises to the level of being testimonial under the Fifth Amendment.”

 

Updated at 9:46 a.m. on Sept. 15 to rework headline

 

 http://www.abajournal.com/news/article/can_cops_use_iphone_xs_facial_recognition_technology_to_access_users_iphone